July 17, 2018

The EPA and Corps Request Additional Comments on the Proposed Repeal of the Clean Water Rule

Environmental Alert
(by Lisa M. Bruderly and Gary E. Steinbauer)
Nearly one year after officially proposing to repeal the Clean Water Rule (CWR), the landmark 2015 Obama Administration rule that redefined “waters of the United States” and arguably expanded the geographic scope of the Clean Water Act (Act), the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the “Agencies”) have clarified the legal basis for, and are soliciting additional comments related to, the proposed repeal. On July 12, 2018, the Agencies published a lengthy Supplemental Notice of Proposed Rulemaking (Supplemental Notice) in the Federal Register to clarify, supplement, and seek additional comment on their proposal to permanently repeal the CWR and recodify the regulatory definition of “waters of the United States” that existed before 2015. 83 Fed. Reg. 32227. Interested parties have until August 13, 2018 to submit comments in response to the Supplemental Notice.
As compared with the initial July 2017 proposal (82 Fed. Reg. 34899), the Supplemental Notice is rich in detail and includes significantly more legal analysis and citations, as well as references to and evaluations of documents included in the administrative record for the CWR. For almost every new or more detailed justification for the proposed repeal, the Agencies request comment. Some of the arguments and reoccurring themes for which the Agencies request comment include:

  • The CWR exceeds the Agencies’ authority under the Act by (1) failing to give sufficient effect to the statute’s use of the term “navigable” to define the Agencies’ jurisdiction and (2) focusing too much on the biological and environmental importance of wetlands.
  • The CWR is a misapplication of the “significant nexus” test for jurisdiction under the Act established by soon-to-be-retired U.S.

    • …

July 16, 2018

Energy Industry in WV and Ohio

Comcast Newsmakers

Tim Miller of Babst Calland talks to host Eric Minor about the Ohio Valley’s energy industry topics such as legal, regulatoryand NG drilling developments, infrastructure, legislative and construction and job growth outlook.

To watch the segment, click here.

July 13, 2018

Delaware Riverkeeper Network and May Van Rossum v. PADEP and Constitution Drive Partners, LP

Alert: PA Environmental Hearing Board Update
(by Jean M. Mosites and Kevin J. Garber)
On July 2, 2018, the Pennsylvania Environmental Hearing Board issued an opinion and order related to a discovery dispute, concluding that no discovery was appropriate in a third-party appeal from an amended settlement agreement under the Hazardous Sites Cleanup Act (HSCA).
The Pennsylvania Department of Environmental Protection signed a prospective purchaser agreement in 2005 with a developer to clean up an abandoned tube manufacturing facility in Chester County, amended the agreement in 2007 and 2010, and published notice of the agreement in 2017 as a settlement under HSCA. Section 1113 of HSCA provides that an appeal of a HSCA settlement agreement must be decided on the administrative record, which is limited to: (1) PADEP’s notice of the proposed settlement, (2) written comments to the settlement, and (3) PADEP’s response to those comments. The Delaware Riverkeeper sought more.
The EHB determined that a party seeking discovery in an administrative record review appeal under Section 1113 of HSCA bears a heavy burden to show discovery is necessary. None of the Delaware Riverkeeper arguments—based on Article I, Section 27 of the Pennsylvania Constitution, as well as allegations of improper procedure and bad faith—met that burden. The full opinion can be found here.
Click here for PDF.

July 12, 2018

Babst Calland Adds 3 Attys To Emerging Tech Practice

Law 360

(by Mike Curley)

Babst Calland has added two shareholders and an associate to its practice, bolstering its roster in support of emerging technologies and new businesses.

The Pittsburgh-based firm announced Tuesday that Justine M. Kasznica and Carl A. Ronald joined as shareholders and Michael E. Fink joined as an associate in its Corporate and Commercial Group.

“The addition of these technology and startup-focused attorneys supports the firm’s strategy to expand its multidisciplinary team to serve the needs of clients developing new technologies, new companies and new ideas,” Managing Shareholder…

For the full article, click here.

July 10, 2018

Pennsylvania Supreme Court reverses approval of oil and gas well on narrow grounds

The PIOGA Press

(by Blaine A. Lucas and Robert Max Junker)

In Gorsline, court declines to rule on broader issue of compatibility with uses in residential and agricultural zoning districts, but suggests that municipalities may permit unconventional natural gas drilling in any and all zoning districts

The Pennsylvania Supreme Court published its long-awaited opinion in Gorsline v. Board of Supervisors of Fairfield Township on June 1. Although the majority reversed the Commonwealth Court’s decision affirming the granting of a conditional use for an unconventional natural gas well pad, it did so in a narrow holding, finding that Inflection Energy, LLC did not present enough evidence before the Fairfield Township Board of Supervisors establishing that its proposed unconventional gas well pad was similar to other uses allowed in the township’s Residential-Agricultural Zoning District. Unlike most zoning ordinances, the township’s zoning ordinance did not specifically authorize oil and gas wells. Instead, Inflection had relied upon a “savings clause,” which allowed uses “similar to” the other uses specifically allowed in the R-A District.

Despite headlines and press releases touting the Gorsline decision as a wholesale rejection of oil and gas development in residential and agricultural zoning districts, its ruling was much more limited. In fact, language in both the Gorsline majority and dissenting opinions largely rejects the post-Robinson Township assertion of many shale gas opponents that natural gas wells must be relegated to industrial zoning districts and are fundamentally incompatible with residential or agricultural zoning districts.

Background
In 2013, Inflection submitted a conditional use application to the board seeking to construct a natural gas well site in the township’s R-A District. …

July 10, 2018

Babst Calland Grows Emerging Technologies Practice, Adds Three Lateral Attorneys

Babst Calland today announced the addition of three lateral moves to support early stage businesses and companies with emerging technologies.

“The addition of these technology and startup-focused attorneys supports the Firm’s strategy to expand its multidisciplinary team to serve the needs of clients developing new technologies, new companies and new ideas,” said Babst Calland’s Managing Shareholder Donald C. Bluedorn II.

Justine M. Kasznica joined as shareholder in the Firm’s Mobility, Transport and Safety and Corporate and Commercial groups. Ms. Kasznica is a technology and commercial transactions attorney who represents technology companies, investor groups, universities and research institutions seeking to commercialize new technologies, as well as innovative products and services. Her clients are customers and vendors of software, SaaS, IoT, AI and robotics products and services in the retail, aerospace, autonomous vehicle, healthcare, education, emergency management and system safety/security industries, among others. In addition, she has experience in general corporate and commercial law matters, and supports clients with their entity formation, corporate governance, venture capital and private equity investments, and commercial contract needs.

A recreational drone pilot with a passion for robotics, space and aviation, she represents commercial space and drone (unmanned aircraft systems – UAS) companies in connection with their regulatory needs, and she also advises universities and large commercial institutions with respect to their UAS operations. In this role, she regularly participates in speaking engagements and leads workshops on legal and regulatory topics related to UAS and commercial space, and serves as an advisor to various UAS and space technology companies and projects.

Ms. Kasznica has been actively involved in Pittsburgh’s innovation economy since she moved to Pittsburgh in 2008. She served as Executive Director of the University of Pittsburgh School of Law Innovation Practice Institute and remains active on the boards of several entrepreneurship-focused organizations and programs, including Ascender, an accelerator and co-working hub. …

July 9, 2018

Babst Calland adds 3 to corporate practice, builds tech expertise

Pittsburgh Business Times

(by Patty Tascarella)

Continuing to add lawyers focused on technology and early-stage companies, Babst Calland on Monday confirmed three hires in Pittsburgh, including two from the local office of a Philadelphia firm.

Justine Kasznica and Carl Ronald both joined Babst Calland as shareholders. They previously had worked for Baer Crossey McDemus and Kasznica had led the Philadelphia-based firm’s Pittsburgh office for the past year.

For the full article, click here.

July 6, 2018

The 2018 Babst Calland Report Focuses on the Appalachian Basin Oil & Gas Industry Forging Ahead Despite Obstacles

PGHTECH FUSE
Marcellus, Utica Shale Plays Account for 41 Percent of U.S. Natural Gas Output
The law firm of Babst Calland today released its annual energy industry report: The 2018 Babst Calland Report – Appalachian Basin Oil & Gas Industry: Forging Ahead Despite Obstacles; Legal and Regulatory Perspective for Producers and Midstream Operators. This annual review of shale gas development activity in the Appalachian Basin acknowledges an ongoing rebound despite obstacles presented by regulatory agencies, the courts, activists, and the market. To request a copy of the Report, contact info@babstcalland.com.
In this Report, Babst Calland attorneys provide perspective on issues, challenges, opportunities and recent developments in the Appalachian Basin and beyond relevant to producers and operators.
According to the U.S. Energy Information Administration’s May 2018 report, the Appalachian Marcellus and Utica shale plays account for more than 40 percent of U.S. natural gas output, compared to only three percent a decade ago. Since then, the Appalachian Basin has become recognized in the U.S. and around the world as a major source of natural gas and natural gas liquids.
The industry has been forging ahead amidst relatively low natural gas prices, infrastructure building, acreage rationalization and drilling plans that align with business expectations. The policy landscape continues to evolve with ever-changing federal and state environmental and safety regulations and tax structures along with a patchwork of local government requirements across the multi-state region.
Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “This Report provides perspective on the challenges and opportunities of a shale gas industry in the Appalachian Basin that continues to enjoy a modest rebound. While more business-friendly policies and procedures are emanating from Washington, D.C., threats of trade wars are raising concerns about the U.S. …

July 6, 2018

Three Pittsburgh attorneys selected to national list of influencers

Pittsburgh Business Times

(by Mark Mensheha)

Manoj Jegasothy of Gordon Rees Scully Mansukhani, Peter Kalis of K&L Gates and Justine Kasznica of Babst Calland have been selected to a national list of notable attorneys.

The Business Journals’ Influencers: Law spotlights 100 executives who are having an impact on business and legal matters in communities across the nation.

These 100 executives represent both large, nationally recognized firms and smaller, locally focused businesses. Some are long-tenured executives, while others have found success relatively early in their careers. And while some might be familiar industry names and others less so, as a group nationally, these individuals are having an impact on matters of business and law in myriad areas.

For the full article, click here.

July 6, 2018

Babst Calland Expands Mobility, Transport and Safety Practice

PGHTECH FUSE
Babst Calland announced the addition of William L. Godfrey as Director, Mobility, Automation and Safety. The Firm is expanding its capabilities to support the developing needs of companies with emerging technologies.  It provides strategic leadership with business and legal advice for manufacturers, suppliers, start-ups, technology companies and government entities in the full-spectrum of transportation regulatory, safety, product quality, and automation matters, including those related to automated/autonomous driving systems.
“Will Godfrey’s expertise and creativity deepens our unique vision to deliver full-stack solutions to clients’ problems that integrate technical and engineering know-how with legal insight to expand business opportunities,” said Tim Goodman, Chair of Babst Calland’s Mobility, Transport and Safety Group, and former National Highway Traffic Safety Administration Assistant Chief Counsel for Enforcement and Federal Senior Executive.
A former General Motors vehicle engineer, production manager and senior U.S. federal regulatory chief at the National Highway Traffic Safety Administration (NHTSA)/U.S. Department of Transportation (DOT), Will Godfrey will assist clients in achieving their business goals and navigating obstacles by applying a current and detailed understanding of the federal government’s approach to transportation safety regulation (particularly motor vehicles), including its programs, processes, and personnel.
Godfrey spent nearly a decade at NHTSA/DOT, where he served in various leadership capacities.  Among other things, as NHTSA’s Trends and Analysis Division Chief, he led the oversight, analysis, and investigation of more than 1,100 vehicle, equipment, tire, motorcycle, and child car seat manufacturers globally, including TREAD Act/Early Warning Reporting Program and the integration of new, data-driven techniques.  As a senior policy advisor to the NHTSA Administrator, he led the agency’s comprehensive reorganization of the NHTSA Office of Defects Investigation (ODI).
“Will Godfrey is well-regarded and uniquely qualified to serve clients with emerging technologies as a senior technical and strategic advisor, integrated with our best in class legal and technical team,” said Donald C. …

July 6, 2018

Kasznica joins Babst Calland

Pittsburgh Business Times 

(by Patty Tascarella)

One of Pittsburgh’s largest law firms has boosted its technology expertise with a big catch.

Babst Calland confirmed on Friday that Justine Kasznica has come aboard as a shareholder in its Mobility, Transport and Safety and Corporate and Commercial groups. Monday is her first day at the downtown headquarters of the region’s seventh-largest law firm.

For the full article, click here.

June 29, 2018

House Oversight Hearing Previews Challenges and Opportunities for Pipeline Safety Act Reauthorization

Pipeline Alert

(by James Curry, Keith J. Coyle and Brianne K. Kurdock)

On June 21, 2018, the U.S. House of Representatives, Transportation and Infrastructure Committee, Subcommittee on Railroads, Pipelines, and Hazardous Materials, held an oversight hearing related to the Pipeline and Hazardous Materials Safety Administration’s (PHMSA) implementation of the Protecting Our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (2016 Act) and its predecessor, the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (2011 Act).

The primary focus of the hearing, the first since the appointment of Howard “Skip” Elliott as the new PHMSA Administrator, was the status of several outstanding statutory mandates from the 2011 Act.  Those mandates directed PHMSA to make appropriate changes to the federal pipeline safety regulations to address the National Transportation Safety Board’s (NTSB) recommendations following its investigation of two significant pipeline accidents that occurred in 2010.

The members of the Subcommittee expressed bipartisan concern with PHMSA’s failure to satisfy the mandates from the 2011 Act, which largely address concerns that the NTSB identified following its investigation of pipeline accidents that occurred nearly eight years ago.  As Administrator Elliott acknowledged during the hearing, PHMSA has not yet made all of the changes necessary to address the mandates in the 2011 Act.  Administrator Elliott indicated that some of the mandates will be addressed in a rule relating to the safety of hazardous liquid pipelines that is in the final stages of review.

Other mandates will be addressed in a rule relating to the safety of gas transmission lines that PHMSA recently presented to the Gas Pipeline Advisory Committee, the federal advisory committee that reviews proposed changes to the gas pipeline safety regulations, for consideration.  …

June 27, 2018

Compulsory Payment of Fair Share/Agency Fees by Public Employees Held Unconstitutional

Public Sector Alert

(by John A. McCreary, Jr., Robert Max Junker and Stephen L. Korbel)

In Janus v. AFSCME Council 31, ___ U.S. ___, No. 16-1466 (2018) the U.S. Supreme Court declared that Illinois’ statutory requirement for nonmembers to pay an “agency fee,” intended to support the collective bargaining related expenses of unions representing public employees, violated the First Amendment. The Janus Court reasoned that because public sector bargaining addressed and affected such matters as the allocation of scarce public resources and the cost of public services, “the union speech at issue in this case [collective bargaining and grievance/arbitration proceedings] is overwhelmingly of substantial public concern,” slip op. at 31. The compulsory payment required by Illinois law, therefore, fell squarely within the Court’s precedent prohibiting governmental compulsion of, or interference with, individual expression. The Court concluded that Illinois’ requirement that nonmembers pay agency fees to unions “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Janus, slip op. at 1. The Court remanded the case to the lower court for further proceedings, which are likely to consist entirely of a damages calculation.

The Janus decision invalidates Pennsylvania’s Public Employee Fair Share Fee Law, 43 Pa.C.S.A. §1102.1 et seq. (Fair Share Law). The Fair Share Law permits public employers and the unions representing their employees to negotiate the payment of “fair share fees” by nonmembers: “If the provisions of a collective bargaining agreement so provide, each nonmember of a collective bargaining unit shall be required to pay to the exclusive representative a fair share fee.” 43 Pa.C.S.A. §1102.3. The “fair share fee” is defined as the “regular membership dues required of members of the exclusive representative, less the cost for the previous fiscal year of its activities or undertakings which were not reasonably employed to implement or effectuate the duties of the employee organization as exclusive representative.” The law requires any public employer that has agreed to fair share to deduct the amount certified by the union from the pay of each nonmember identified by the union. …

June 27, 2018

The intersection of the Right-to-Know Law, trade secrets and confidential proprietary info

Lawyers Journal 

(by Blaine A. Lucas and Amie L. Courtney)

In 2008, Pennsylvania enacted the current Right-to-Know Law with the intent to promote transparency between the public and state and local agencies by establishing that records held by state and local agencies are accessible to the public, unless subject to an exception.

One exception is receiving increased scrutiny due to proposals submitted to Amazon by Pittsburgh and Allegheny County, through a company created by the city and county – PGHQ2, LLC – for the location of the company’s second headquarters. The exception is for trade secrets and confidential proprietary information. Records subject to this exception must involve documents that have been protected, subject to secrecy, the release of which would affect the competitive position of the owner of such records.

Numerous news outlets submitted requests to the city and county for a copy of the proposal. Those requests were all denied, but the state Office of Open Records reversed on appeal. The Office of Open Records found that the proposal was not a trade secret because the city and county were not engaged in any business or commerce that could be impacted by the release of the information. Additionally, the records were not confidential proprietary information because the information was submitted, not received, by the government, as required by the definition in the Right-to-Know Law. PGHQ2 submitted the proposal to Amazon, a factor dismissed by the Office of Open Records because the city and county claimed the proposal contained confidential proprietary information of the governmental agencies and because they found PGHQ2 to be an alter ego of the city and county. The city and county recently appealed the decisions to the Allegheny County Court of Common Pleas, and the requested records have not yet been released. …

June 25, 2018

Spat between drillers, PUC cuts $6M into state’s impact fee

Pittsburgh Business Times 

(by Paul J. Gough)

Under the 2011 Act 13 that established the impact fee, stripper wells are exempt from the impact fee.

The collection of the shale impact fee — the hundreds of millions of dollars that go to local, county and state coffers due to Marcellus and Utica drilling — is itself being impacted by an estimated $6 million due to a legal spat between drillers and the Pennsylvania Public Utility Commission.

The issue is over so-called stripper wells, which are unconventional natural gas wells that fall under a threshold of less than 90,000 cubic feet per day. Under the 2011 Act 13 that established the impact fee, stripper wells are exempt from the impact fee. One driller, Snyder Bros. Inc., and the Pennsylvania Independent Oil & Gas Association (PIOGA) challenged in Commonwealth Court the PUC’s decision denying exemptions; they received a favorable ruling in 2017 but it is on appeal with the Pennsylvania Supreme Court.

For the full article, click here.

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